2016-00202022-CU-OE

Adrian Aguirre vs. Bitech, Inc.

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Mukherjee, Piya

Plaintiff Adrian Aguirre’s (Aguirre) motion to compel further responses to Document Requests Nos. 1 and 2 (Set 3) is GRANTED in part and DENIED in part.

This is a putative wage and hour class action. Aguirre is the sole representative plaintiff. The defending employer is Bitech, Inc. dba Performance Bike Shop (Bitech). Aguirre’s complaint contains, among others, a cause of action for failure to pay overtime wages. It also contains a PAGA claim for civil penalties.

The document requests currently at issue read:

REQUEST FOR PRODUCTION NO. 1:

Please produce, in electronic, Microsoft Excel spreadsheet format, all payroll records for the CLASS MEMBERS during the RELEVANT TIME PERIOD with anonymous numerical identifiers to protect privacy interests and the redaction of all personal information including mailing addresses, social security numbers, dates of birth and store number.

REQUEST FOR PRODUCTION NO. 2:

Please produce, in electronic, Microsoft Excel spreadsheet format, all payroll records for the AGGRIEVED EMPLOYEES during the RELEVANT TIME PERIOD with anonymous numerical identifiers to protect privacy interests and the redaction of all personal information including mailing addresses, social security numbers, dates of birth and store numbers.

“CLASS MEMBERS” means all individuals who are working or previously worked for Bitech and classified as non-exempt employees during the time period of October 19, 2012 to the present. “AGGRIEVED EMPLOYEES” means all individuals who are working or previously worked for Bitech and classified as non-exempt employees during the time period of October 19, 2015 to the present. “RELEVANT TIME PERIOD” means October 19, 2012 to the present.

Aguirre previously propounded similar document requests. The court denied Aguirre’s motion to compel further responses given the record at that point. The denial was without prejudice.

Bitech served objections that the current requests infringe upon its employees’ privacy rights and are unduly burdensome, overly broad, duplicative, oppressive and harassing. It indicated it will not produce responsive materials. Counsel met and conferred, but they reached an impasse. This motion followed.

Bitech’s objections are overruled. Bitech has not demonstrated any undue burden relieving it of the obligation to produce responsive materials.

The only other objection meriting discussion is the privacy objection. Bitech correctly points out that its employees have an interest in keeping their pay information private. But Aguirre has asked for the information in a redacted, anonymized form so that no names or other identifying information is disclosed. Aguirre also concedes the redacted information should be placed under the protective order on file. These safeguards mitigate the impact of disclosure.

Furthermore, Aguirre has shown a compelling need for the information that overcomes vestigial privacy interests in the redacted, protected information. As his forensic accountant explains, the payroll records are needed to distill actual failures to pay overtime wages and any unpaid amounts. (See Lietzow Decl., ¶¶ 3-17.) Such evidence is directly relevant to the predominance vel non of common issues of law and fact, which Aguirre will be required to demonstrate in a certification motion. (See ABM Industries Overtime Cases (2017) 19 Cal.App.5th 277, 299.) Payroll information is similarly relevant to Aguirre’s adequacy as class representative and the typicality of his claims in relation to the proposed class’. (See id.) Courts consider statistical and sampling evidence, including in the form of expert testimony, “’to evaluate whether common behavior towards similarly situated plaintiffs makes class certification appropriate.’” (Id., p. 300.) Bitech may be correct that there is other discovery supporting class certification. Aguirre, though, is not required to forego directly relevant payroll evidence that can be protected from unnecessary disclosure.

Although the court concludes Aguirre is entitled to some anonymized payroll information, only a sampling is required at this stage of the case. Aguirre does not

need payroll information for all 1,500 members of the putative class. Instead, the court orders Bitech to serve verified further responses indicating that it will produce anonymized payroll information, in the electronic format requested, for 150 AGGRIEVED EMPLOYEES and for an additional 150 CLASS MEMBERS who are not AGGRIEVED EMPLOYEES. If Aguirre genuinely requires more payroll information to prepare a certification motion, then he may seek additional relief at the appropriate time.

In granting Aguirre partial relief, the court is aware that Aguirre possesses contact information for the class and could negotiate with individual class members who wish to release their payroll information voluntarily. The court, however, is not persuaded that such a time-consuming procedure is required, especially given the protections to be placed on the sampling now ordered.

Disposition

The motion is granted in part and denied in part on the terms above.

Bitech shall serve its further written responses no later than 8/20/18. Counsel shall then coordinate a process to select the total sample of 300. If counsel are unable to agree on a process, Bitech may cull 150 AGGRIEVED EMPLOYEES and 150 more CLASS MEMBERS from an undisclosed segment of the alphabet (e.g., the first 150 AGGRIEVED EMPLOYEES whose last names begin with letters L through S).

Bitech shall produce the payroll information, anonymized and pursuant to protective order, no later than 9/20/18.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is required.